^.  OREGON  ElfCnON 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


V 


Oregon  Election. 


EFFECT  OF  A  MAJORITY  OF  VOTES  CAST 

FOR  A  CANDIDATE 

CONSTITUTIOMLLY  DISQUALIFIED. 


SAN   FRANCISCO: 

JoSEPn    WiNTEUBURN    &    Co.,    PeISTEES   AND    ElECTROTYPERS.  \ 

417  Clay  Street,  between  Sansome  and  Batterj-.  '  ;' 

C  J't^^X  1876.  ^'^S  V 


■•^^.  o 


'V 


p 


CX3 


Hon.  JAxMES  K.  KKLLY, 

Dear  Sir  : — I  have  examined  the  question 
presented  under  the  Constitution  of  the  United 
States,  and  the  Constitution  and  laws  of  Oregon 
as  to  votes  cast  for  the  office  of  Elector  of  Presi- 
dent, in  favor  of  persons  holding  office  under  the 
general  government,  with  the  following  result. 

1.  The  Constitution  of  the  United  States  pro- 
^  vides  for  the  appointment  of  Presidential  Electors 
-  by  the  several  States.  The  appointment  is  to  be 
made  in  such  manner  as  the  State  Legislatures  may 
^  direct,  ''  But  no  person  holding  any  office  of  trust  or 
profit  under  the  United  States  shall  be  appointed  an 
Elector y  The  Legislature  of  Oregon  has  devolved 
the  appointment  of  Electors  on  the  people,  and 
declared  that  those  having  the  highest  number  of 
votes,  at  an  election  held  for  the  p.urpose,  shall  be 
the  Electors  for  the  State.  But  as  that  Legisla- 
ture had  neither  the  intention  nor  the  power  to 
override  the  Constitution  of  the  United  States, 
this  legal  provision  must  be  understood  to  refer  to 
persons  competent  to  be  chosen  as  Electors  ;  and 
to  enact  that  the  persons,  not  disqualified,  who  re- 
ceive the  highest  number  of  votes,  shall  be  deemed 
to  be  chosen.  So  far  it  seems  to  me  there  is  no 
room  for  doubt. 

THE  LIBRARY^- 
UNIVERSITY  OF  CALIFORNIA 
XOS  ANGELES 


2 

2.  What  then  is  the  effect  of  votes  cast  for  a  Fed- 
eral officer  for  the  position  in  question  ?  It  seems 
to  ine  that  such  votes,  which  are  merely  an  at- 
tempt by  individuals  to  override  the  Constitution 
of  the  United  States,  are  simply  void.  The  per- 
sons who  have  engaged  in  such  unconstitutional 
attempt  have,  in  effect,  thrown  away  their  votes, 
just  as  if  they  had  voted  for  a  dead  man,  or  a  fic- 
titious person,  or  voted  a  blank.  Hence  the  only 
efficient  votes  are  those  cast  lor  persons  capable 
of  being  chosen;  and,  of  them,  the  requisite  num- 
ber, highest  on  the  poll,  are  those  appointed. 

3.  The  next  question  is  how  and  by  whom  is 
this  disqualifying  fact  to  be  ascertained,  for  it  is  evi- 
dent that  it  mast  be  ascertained,  in  some  official  and 
authoritative  manner.  To  answer  this  question 
we  must  examine  the  election  law  of  the  State  of 
Oregon,  to  see  on  whom  it  has  devolved  the  duty 
of  passing  on  the  legal  effect  of  the  votes  cast,  and 
pronouncing  judgment  as  to  who  is  chosen. 

The  mode  of  canvassing  the  votes  at  an  election, 
as  regulated  by  the  laws  of  Oregon,  is  quite  sim- 
ple. The  officers  of  election  in  the  several  pre- 
cincts certify  and  return  to  the  County  Clerk,  the 
number  of  votes  cast  in  the  several  precincts,  the 
names  of  the  persons  voted  for,  and  the  number 
of  votes  cast  for  each."'^'  The  County  Clerk  calls  to 
his  assistance  two  Justices  of  the  Peace,  as  official 
witnesses,  and  from  the  various  precinct  returns 
filed  in  his  office  computes  the  whole  vote  of  the 


General  Laws:  Chap.  XIV,  Tit.  II,  pp.  570,  571. 


County;  makes  lists  of  the  persons  voted  for,  and 
the  number  of  votes  cast  for  each,  and  transmits 
them  to  the  Secretary  of  State;  and  this  last 
named  officer,  in  the  presence  of  the  Governor, 
compiles  from  the  several  County  returns  before 
him  the  votes  of  the  whole  State. t  So  far,  the 
work  is  purely  arithmetical,  and  is  confined  to 
subordinate  and  merely  ministerial  officers.  The 
Governor  is  then  directed  to  "  grant  a  certificate 
of  election "  to  the  persons  having  the  highest 
number  of  votes,  and  to  "  issue  a  proclamation  de- 
claring the  election  of  such  peisons.^'X  It  seems  to  me 
plain  that  here  is  the  point  at  which  any  disqual- 
ification against  a  person  voted  for  must  be 
alleged  and  shown.  The  Governor  is  not  only  re- 
quired to  be  a  witness  to  the  canvassing  by  the 
Secretary  of  State,  so  as  to  guard  against  mistake 
or  malfeasance,  but  he  is  to  declare  officiall}^,  as  the 
chief  magistrate  of  the  commonwealth,  and  on  its 
behalf,  the  legal  result  of  the  voting.  He  is  to  make 
known  in  the  most  formal  and  solemn  manner,  by 
certificate  of  election,  under  the  great  seal  and  by 
public  proclamation,  the  names  of  the  persons 
whom  the  State  has  appointed  to  be  her  Electors. 
He  can  not  be  called  on  to  certify  and  proclaim 
that  the  State  has  appointed  one  whom  the  Con- 
stitution of  the  United  States  has  forbidden  her 
to  appoint,  and  whom,  therefore,  in  law  she  has  not 
appointed.  His  oath  of  office  as  Governor  expressly 
forbids  him.  .(See  Const.  Oregon,  Art.  XV,  Sec.  3.) 

t  General  Laws:  Chap.  XIV,  Tit.  Ill,  p-  573. 
t  Id.  ib,  Sec.  37. 


It  is  for  him,  therefore,  when  the  arithmetical  com- 
putations have  been  completed,  to  ascertain 
whether  any,  of  thoseVoted  for,  are  constitutionally 
disqualified,  and,  if  he  finds  such  to  be  the  fact,  to 
disregard  such  unconstitutional  votes,  just  as  if 
they  had  not  been  cast. 

4.  This  view,  the  natural  and  logical  result  of  the 
constitutional  and  legal  provisions  bearing  directly 
on  the  subject,  is  confirmed  by  the  absence  of  any 
provision  whatever,  for  ascertaining  the  qualifica- 
tions of  persons,  voted  for  as  Electors,  by  any 
other  authority  than  the  Governor;  so  that  in 
fact,  unless  the  duty  in  question  devolves  on  him, 
it  cannot  be  discharged  at  all.  And  here  it  may 
be  laid  down,  as  an  axiom,  that  all  inhibitory 
provisions  of  the  Constitution  of  the  United 
States  are  self -enforcing,  and  need  no  State  legis- 
lation for  that  purpose;  for,  otherwise,  it  would  be 
in  the  power  of  the  States,  by  mere  failure  to  legis- 
late, to  nullify  or  frustrate  the  fundamental  law. 
Hence  it  follows  that,  in  the  absence  of  any  pro- 
vision of  law  in  Oregon  for  ascertaining  the  dis- 
qualification of  Electors,  such  duty  devolves  by 
force  of  the  Constitution  of  the  United  States  on 
the  officer  who  has  to  ascertain  and  promulgate 
the  legal  result  of  the  election. 

It  derives  additional  confirmation  from  the  pro- 
visions of  Art.  XII  of  the  Constitution  of  the 
United  States,  which  directs  the  Electors  of  Presi- 
dent and  Vice  President  to  meet  in  their  respect- 
ive states,  and  vote  for  those  officers  by  ballot,  and 


that  the  lists  transmitted  to  the  seat  of  govern- 
ment shall  contain  onlij  the  names  of  the  persons  voted 
for  and  the  number  of  votes  cast  for  each.  Tliis  pro- 
vision puts  it  out  of  the  power  of  the  houses  of 
Congress,  when  they  assemble  to  count  the  votes, 
to  ascertain  for  whom  a  disqualified  Elector  cast 
his  vote.  It  is  clear  therefore  that  disqualifica- 
tion must  be  ascertained  before  the  certificate  of 
election  is  granted,  and  that  the  Governor  of  the 
State  is  the  person  to  perform  that  duty. 

5.  The  course  usually  pursued  in  cases  of  elec- 
tion to  the  ordinary  offices  of  government,  of  giving 
the  certificate  of  election  to  the  person  having  the 
highest  number  of  votes,  and  leaving  the  title  to 
the  office  to  be  tried  in  the  Courts,  on  a  writ  of 
quo  ivarranto,  is  inapplicable  to  Presidential  Elec- 
tors. In  case  of  ordinary  offices,  all  citizens  are 
eligible,  and  a  question  which  goes  behind  the 
election  returns  and  involves  the  determination  of 
facts  dependent  on  the  testimony  of  witnesses,  as 
ex.gr., double  voting,  bribery,  intimidation,  etc.,  can 
only  be  tried  by  a  court  having  the  power  to  com- 
pel the  attendance  of  witnesses,  and  the  other 
judicial  means  of  ascertaining  truth.  Such  ques- 
tions have  accordingly  been  so  tried  from  time 
immemorial.  But  where,  by  the  fundamental  law, 
the  existence  of  a  particular  fact,  which  all  per- 
sons are  bound  to  take  notice  of,  constitutes  an 
absolute  disqualification  against  being  chosen, 
there  is  no  power  in  the  State  to  choose  such  a 
person,  and  every  attempt  to  do  it  is  wholly 
void — a  mere  nullity. 


6 

Another  conclusive  reason  against  a  trial  by 
qao  warranto  is  that,  from  the  peculiar  character 
of  the  office,  the  writ  could  not  possibly  afford  a 
remedy.  The  Electors  are  chosen  within  the  first 
eight  days  of  November;  thirty  days  thereafter 
are  allowed  by  law  for  transmitting  the  returns 
and  completing  the  canvass,  by  the  Secretary  of 
State;  yet,  on  the  first  Wednesday  of  December, 
twenty-nine  days  after  the  election,  at  most,  the 
Electors  are  to  meet,  and  cast  their  votes.  A  few 
hours,  a  day  or  two  at  most,  can  elapse  between 
the  issuance  of  the  proclamation  and  certificate  of 
election,  and  the  completion  of  the  only  duty  to 
be  discharged  by  the  Electors.  To  say  that  a  pro- 
vision of  the  Constitution  of  the  United  States  is 
to  be  set  at  naught,  unless  within  those  few  hours 
an  action  of  quo  luarranto  can  be  commenced  and 
brought  to  a  final  determination,  is  to  propose  a 
mere  mockery  of  the  fundamental  law. 

Evidently  there  not  only  is  no  legal  mode  of 
trying,  judicially,  the  title  to  the  office  of  Elector 
of  President,  but  it  is  impossible  to  provide  one. 
No  legal  proceeding  involving  judicial  determina- 
tion of  such  right,  by  a  Court,  could  possibly  be 
completed  between  the  conclusion  of  the  canvass 
of  the  popular  vote  and  the  discharge  of  their  sin- 
gle official  duty,  by  the  Electors  commissioned. 
Hence  no  other  construction  consistent  with  the 
supremacy  of  the  Constitution  of  the  United  States 
can  be  given  to  the  election  law  of  Oregon  than 
that  above  indicated. 


It  is  objected  that  the  duty  of  determinii)g,  ou 
a  given  state  of  the  poll,  who  is  entitled  t(j  the 
office,  is  judicial  in  its  character,  and  can  not  be 
devolved  on  an  executive  officer;  but  this  is 
clearly  a  mistake.  Such  determination,  like  ev- 
ery other  which  has  to  be  made  by  an  executive 
officer,  before  acting,  in  a  contingency  contempla- 
ted by  law,  involves  the  exercise  of  judgment  as 
to  whether  the  contingency  has  arisen  or  not;  and 
such  judgment  must  follow  legal  rules.  In  this 
sense,  therefore,  it  may  be  said  to  be  quasi  j\id\<i'ui\ 
in  character;  but  it  is  one  of  a  large  class  of  du- 
ties of  that  character  which  are  constantly  de- 
volved on  executive  officers —sheriffs,  clerks,  dis- 
trict attorneys,  supervisors,  heads  of  executive 
departments,  etc.  —  and  which  the  courts  iiave 
uniformly  sustained.  For  a  similar  case  see  Gu- 
lick  vs.  New  (14  Indiana  R.  93). 

6 .  I  have  heard  it  suggested  that  the  difficulty 
may  be  overcome  by  the  disqualified  candidate's 
resigning  his  Federal  ofiice  before  accepting  that 
of  Elector.  But  there  is  no  warrant  for  such  a 
supposition. 

An  election  is  complete  at  the  moment  of  closing 
the  polls.  Electors  have  then  boen  chosen  The 
subsequent  canvassing  of  the  votes  is  merely  the 
ascertainment,  by  arithmetical  ('oin[)ntation,  of 
the  results  of  what  has  been  done ;  votes  which 
were  invalid  when  deposited  in  the  ballot-box 
cannot  be  rendered  valid  by  any  subsequent  act  or 
occurrence.     Nor  is  there  any  room  for  the  sug- 


8 

gestion  that  a  majority  of  votes  being  cast  for  a 
Federal  officer  creates  a  vacancy  in  the  Electoral 
College.  The  votes  for  such  an  individual  are 
simply  void,  and  the  persons  casting  them  have  in 
fact  refrained  from  voting.  If  a  vote  for  a  dis- 
qualified person  were  efficient  to  create  a  vacancy 
in  the  College,  a  majority  of  the  voters,  by  voting 
for  a  whole  ticket  of  Federal  officers,  might  de- 
prive the  State  of  its  Presidential  vote,  and  nullify 
the  Constitution  of  the  United  States. 

7.  I  am  aware  that  there  are  reported  cases 
wherein  it  has  been  held  that  the  casting  of  a  major- 
ityofvotesfor  an  ineligible  candidatedoes  not  neces- 
sarily result  in  the  choice  of  the  person  next 
highest  on  the  poll.  It  is  said  in  them,  that  where 
the  votes  so  cast  have  been  given,  hy  mistake  of  lavj 
or  fact,  the  election  results  in  no  choice.  These 
adjudications,  even  if  sound,  can,  for  obvious 
reasons,  have  no  application  to  votes  for  Presiden- 
tial Electors,  given  in  favor  of  persons  constitu- 
tionally disqualified  from  being  such  ;  but  as  they 
are  often  quoted  and  are  in  conflict  with  other 
American  decisions,  as  well  as  with  the  current  of 
English  authority,  it  is  proper  to  examine  the  rea- 
soning by  which  they  are  supported.  To  my 
mind,  it  is  wholly  unsound. 

The  argument  is  given  in  the  case  of  People  ex 
rel.  Furman  vs.  Clute  (50  X.  Y.,  451),  more  in 
extenso  than  in  any  other  case  I  have  met  with, 
and  1  therefore  proceed  to  examine  that  opinion. 

Preliminarily,  it   may  be  observed  that  prece- 


9 

dents  taken  from  cases  of  private  corporations  or 
municipal  bodies,  of  practically  analogous  charac- 
ter, can  have  but  little  weight  in  determining  a 
question  of  political  law  under  our  system.  In 
them  the  right  to  vote  is  limited  to  a  small  number 
of  privileged  persons,  and  usually  exercised  viva 
voce^  so  that  how  each  elector  voted,  and  why  he 
so  voted,  can  be  ascertained.  With  us,  suffrage 
is  exercised  by  secret  ballot,  and  is  practically 
universal.  To  ascertain  by  whom,  with  what 
amount  of  knowledge  or  intelligence,  and  from 
what  motives,  the  votes  for  a  particular  person 
were  cast,  is  impossible,  even  if  it  be  conceded 
that  a  secret  ballot  is  legally  compatible  with 
such  inquiry.  Hence,  the  suggestion  that  tho 
effect  of  votes  for  a  particular  candidate  depends 
upon  whether  they  were  given  with  or  without 
the  knowledge  of  his  -  ineligibility,  or  upon 
whether  the  voters  giving  them  deliberately  in- 
tended to  throw  away  their  votes,  is  wholly  un- 
tenable. When  the  law  gives  a  secret  ballot,  surely 
no  court  has  a  right  to  inquire  of  any  citizen  how 
he  voted,  or  what  private  intent  he  had  when 
casting  his  vote..  And  as  to  indulging  presump- 
tions with  respect  to  the  knowledge  or  the  intent 
of  many  thousand  persons,  where  there  is  no 
power  to  conqiel  evidence  of  the  lact  itself,  from 
any  one  of  them,  it  is  at  variance  with  every  prin- 
ciple of  judicial  investigation.  Yet  this  is  precisely 
the  point  on  which  the  decision  in  Furman  vs. 
Clute  is  made  to  turn.  Judge  Folger  says  (p. 
461) :  '■  They  who,  knowing  that  a  person  is  inel- 


10 

igible  to  olfice  hy  r.3cisoii  of  any  disqualification, 
persistently  give  their  ballots  for  him,  do  throw 
away  their  votes,  and  are  to  be  held  as  not  mean- 
ing to  vote  for  any  one  for  that  office."  But  what 
is  it  to  persistently  give  their  ballots  for  a  particular 
candidate  ?  No  voter  can  give  more  than  one  bal- 
lot, nor  that  more  than  once  at  the  same  election. 
Once  given,  too,  it  is  irrevocable.  To  persistently 
give  their  ballots  for  a  particular  person,  must 
therefore  mean,  if  it  means  anything,  to  give  their 
ballots  for  him  at  several  successive  elections — to 
repeat  the  act  of  voting  for  him  so  frequently  as 
to  force  the  Court  to  conclude,  contrary  to  the 
natural  presumption,  stated  in  another  part  of  the 
opinion,  that  they  intended  to  throw  away  their 
votes:  and  the  context  shows  that  this  was,  in 
fact,  the  idea  in  the  learned  judge's  mind.  But 
surely  such  a  theory  needs  only  to  be  plainly 
stated  to  expose  its  fallacy.  It  assumes,  without 
any  warrant,  that  disqualification  for  office  is 
something  permanent  in  its  character,  and  that 
the  particular  persons  voting  for  the  disqualified 
candidate  at  each  successive  election,  are  necessa- 
rily the  same  individuals,  for  otherwise  there 
is  no  persistence.  Both  these  assumptions 
are  clearly  erroneous;  for,-  with  rare  excep- 
tions, such  as  in  the  case  of  the  Presidency  of  the 
United  States,  all  disqualifications  are  with  us 
accidental  and  temporary  in  their  character  (so 
that  their  existence  at  any  particular  moment 
raises  no  presumption  of  their  continuance,  or  of 
a  belief   in  their  continuance,   at  a   subsequent 


11 

time),  and  there  are  no  means  of  ascertaining 
whether  the  votes  given  for  a  {)articuhir  candidate 
at  any  number  of  successive  elections  do  or  do 
not  come  from  the  same  voters.  The  question  of 
persistency,  therefore,  would  have  to  be  settled  by 
pure  guesswork. 

These  considerations  make  it  clear  that  persist- 
ency in  voting  for  a  candidate  (on  which  however 
the  whole  strain  of  the  sentence  rests)  can  have 
no  place  in  determining  the  question,  for  the  fact 
of  ''persistence  "  is  absolutely  unascertainable  by 
law,  and  hence  no  legal  consequences  can  attach 
to  it.  The  word  "persistently"  then  must  be 
omitted  from  the  sentence,  as  inadvertently  used, 
and  the  proposition  will  then  read  thus:  "They 
who  knowing  that  a  person  is  ineligible  to  office, 
by  reason  of  any  disqualification,  give  their  ballots 
for  him  do  throw  away  their  votes  and  are  to  be 
held  as  meaning  not  to  vote  for  any  one  for  that 
office."  So  stated,  the  proposition  is  unobjection- 
able, because  it  should  be  understood  in  connect- 
ion with  the  fundamental  maxim  of  all  civilized 
governments,  that  every  man  is  held  to  know  the 
law  of  the  land,  and  to  know  who  are  the  officers 
of  government.  But  as  the  learned  Judge  does 
not  mean  it  to  be  so  understood,  and  in  that  case 
even  indulges  a  presumption  that  a  majority  of 
the  voters  were  ignorant  both  of  the  law  and  the 
fact,  we  must  follow  him  further. 

It  may  be  assumed  that  the  law  will  not  allow 
the  validity  of  a  legal  act  to  depend  on  facts  which 


T2 


are  perfectly  capable  of  proof,  but  which  the  Courts 
have  no  meaus  of  ascertaining;  for  that  would  be 
to  lodge  with  those  tribunals  the  power  of  deter- 
mining controversies  arbitrarily.  Now  if  there  is 
an}^  one  thing  w^hich  transcends  the  physical  power 
of  a  Court  of  Justice  to  do  (even  assuming  that  it 
has  the  legal  right  to  inquire)  it  is  to  ascertain  liow 
many  of  the  electors  who,  at  a  State  election,  cast 
their  ballots  for  a  particular  candidate  di8(iualified 
by  law  for  the  office,  did  so  with  knowdedge  of  the 
disqualifying  facts.  It  is  simply  a  physical  impos- 
sibility, for  it  involves  the  examination  of  every 
voter  throughout  the  State,  and  the  ascertaiament 
from  him  (the  only  person  who  can  have  knowl- 
edge of  the  fact)  of  what  ticket  he  voted  and  what 
the  state  of  his  knowledge  was  at  the  time  he  cast 
his  ballot.  Fancy  for  a  moment  such  an  inquiry 
instituted  in  New  York,  where  at  the  last  election 
over  a  million  votes  w^ere  polled.  Even  with  the 
limited  vote  of  the  smallest  State  it  would  be  a 
physical  impossibility;  the  offer  of  such  evidence 
in  Court  would  alone  point  out  to  any  Judge  the 
absurdity  of  an  inquiry  wdiich  a  lifetime  would 
not  suffice  to  conduct.  Yet,  if  the  validity  of  the 
vote  is  to  depend  on  the  existence  of  such  knowl- 
edge, that  knowledge  becomes  the  very  fact  to  be 
inquired  into,  and  the  best  and  only  reliable  evi- 
dence of  it  is  the  testimon}'-  of  the  voter  himself. 
As  to  determining  it  on  presumptions,  while  the 
best  evidence  of  the  fact  itself  is  excluded,  that  is 
simply  to  refer  it  to  the  arbitrary  determination 
of  the  Judges. 


13 

What  possible  facts  can  exist  or  be  shown  to 
guide  a  Judge  in  ascribing,  by  presumption,  a  par- 
ticukir  intent  of  thousands  of  voters  which  intent 
they  have  never  disclosed  and  he  has  no  means  of 
discovering?  Most  of  tlie  facts  likely  to  have 
weight,  with  one  accustomed  to  the  study  of  politi- 
cal statistics,  would  in  all  probability  be  excluded 
as  incompetent  evidence;  and  indeed  all  testimony 
on  the  subject,  except  that  of  each  individual  as  to 
his  own  state  of  mind,  must  necessarily  be  of  the 
most  unsatisfactor}^  character. 

Nor  is  there  any  safety  in  permitting  the  results 
of  a  popular  election  to  be  determined  by  anything 
else  than  a  count  of  the  votes  lawfully  cast.  Is  it 
not  evident  that  iCa  Court  is  at  liberty  out  of  the 
same  election  returns  to  spell  out  two  contrary 
results,  dependent  upon  what,  in  the  absence  of  all 
evidence,  it  shall  presume  the  facts  to  be,  the 
power  of  election  is  taken  from  the  people  and  is 
confided  to  the  arbitrary  discretion  of  the  Judges? 

These  and  many  like  considerations,  make  it;  as 
I  think,  clear  that  the  amount  of  knowledge 
possessed  by  the  voter,  and  his  secret  intent  in 
casting  his  ballot,  are  matters  with  which  neither 
Courts  nor  returning  officers  have  anything  to  do. 
The  result  of  the  election  depends  on  the  votes 
lawfully  cast,  and  on  them  alone,  and  there  can  be 
but  one  rule  for  ascertaining  it.  The  law  in  such 
cases  deals  simply  with  the  act  and  can  know 
nothing  of  any  intent  save  what  the  act  itself  in- 
dicates.    Suppose  a   voter  writes  on  his  ballot  a 


14 

declaration  that  ho  intends  to  throw  away  bis 
vote;  is  it  for  that  reason  not  to  bo  counted  in 
favor  of  the  candidate'  whose  name  is  inscribed  on 
it  ?  Suppose  he  heads  his  ticket  with  the  declara- 
tion that  it  is  the  regular  Democratic  ticket,  3'^et 
the  names  on  it  are  those  of  the  candidates  of  the 
opposite  party;  are  the  returning  officers,  or  is  a 
Court,  authorized  to  amend  the  ballot  so  as  to 
conform  to  the  intent  of  the  voter  ?  There  can 
be  but  one  answer  to  these  questions;  yet  in  both 
these  cases  the  amendment  would  be  made  con- 
formably to  the  intent  of  the  voter,  as  shown  by 
the  ballot  itself.  In  the  case  we  are  considering, 
the  proposition  is  that  the  Court  may  amend,  not 
one,  but  many  thousand  ballots,  by  indulging  a 
legal  presumption  that  more  than  half  the  voters 
in  the  State  were  ignorant  of  what  every  man, 
woman  and  child  in  the  state  is  bound  by  law  to 
know.  Surely  if  there  is  any  room  for  presump- 
tion in  such  a  case,  it  must  be  a  presumption  of 
knowledge,  not  of  ignorance. 

"  There  may  be,"  continues  Judge  Folger,  "  a 
disqualifying  fact  so  patent,  or  notorious  as  that 
knowledge  ii\  the  elector  may  be  presumed  as  mat- 
ter of  law."  And  then  he  quotes  a  suggestion  of 
C.  J.  Denman's  that  "no  one  can  doubt  that  if  an 
"  electorwould  nominate  and  vote  only  for  a  woman 
'  to  fill  the  office  of  Mayor,  or  Burgess  in  Parlia- 
''  ment,  his  vote  would  be  thrown  away;  then  the 
"  fact  would  be  notorious,  and  every  man  ivould  be 


15 

"  presumed  to  hioio  the  law  upon  that  fad!''^'  But 
does  not  this  dictum  imply  of  necessity  a  pre- 
sumption that  every  voter  personally  knows  the 
individual  for  whom  he  gives  his  vote,  or  at  least 
knows  icho  and  what  he  is?  Otherwise  there  is 
nothing  but  the  name  to  indicate  the  sex  of  the  can- 
didate, and  names  often  fail  to  do  so.  Not  to  refer  to 
the  numerous  instances  in  which  our  population  of 
Spanish  descent  use  such  names  as  "Jesus  Maria," 


'The  quotation  is  from  the  opinion  of  C.  J.  Denmau  in  Gosling  vs. 
Veley,  7Adol  Sc  EL,  N.  S.,  pp.  438-9.  The  words  of  the  Chief  Justice 
are  as  follows: 

"He  is  present  as  an  Elector;  his  presence  counts  as  such  to  make  np 
"  the  requisite  numberof  Electors,  where  a  certain  number  is  necessary; 
' '  but  he  attends  only  as  an  Elector,  to  perform  the  duty  which  is  cast 
"  on  him,  by  the  franchise  he  enjoys  as  Elector;  he  can  speak  only  in  a 
'*  particular  language;  he  can  do  only  certain  acts;  any  other  language 
"means  nolhimj;  any  other  act  is  merely  null;  his  duty  is  to  assist  in  mak- 
«'  ing  an  election.  If  he  dissents  from  the  choice  of  A,  who  is  qualified, 
"he  must  say  so  by  looting  for  some  other,  aho  qnnlitied;  he  has  no  right 
"  to  employ  his  franchise  merely  in  preventing  an  election,  and  so  de- 
"  feating  the  object  for  which  he  is  empowered  and  bound  to  attend.  And 
"  this  is  a  wise  and  just  rule  in  the  law.  It  is  r.ccessiiry  that  an  election 
"should  be  duly  made  and  at  the  lawful  time;  the  electoral  meeting  is 
"held  for  that  purpose  only;  and,  but  for  this  rule,  the  interest  of  the 
"  public  and  the  purpose  of  the  meeting  might  both  be  defeated  by  the 
"  perverseness  or  the  corruption  of  electors  who  mav  seek  some*uufair 
"  advantage,  by  postponement.  If  then  the  Elector  will  not  oppose  the 
"  election  ot  A,  in  the  only  legal  way,  he  throws  away  his  vote,  by  direct- 
"  ing  it  whore  it  has  no  legal  force;  and  in  so  doing,  he  voluntarily  leaves 
"  unopposed,  i.e  ,  assents  to  the  voices  of  the  other  Electors. 

"  Where  the  disqualification  depends  upon  a  fact  which  may  be  un- 
"  known  to  the  elector,  he  is  entitled  to  notice;  for  without  that  the 
"  inference  of  assent  could  not  be  fairly  drawn,  nor  would  the  conse- 
"  quences  as  to  the  vote  be  just.  But,  if  the  (Usqualificationbe  of  a  sort, 
"  lo^'firenf  notice  is  to  he  prcsum<'(l,  mme  need  expressly  he  ijiren:  no  one  can 
"  doubt,  that  if  an  elector  would  nominate  and  vote  only  for  a  woman, 
"to  fill  the  office  of  Mayor,  or  Burgess  in  Parliament,  his  vote  would 
"  be  thrown  away;  there  the  fact  would  be  notorious;  and  every  man 
"would  be  pi-esumed  to  know  the  law  upon  that  fact." 


16 

"Dolores,"  "Concepcion/'  "  Buenaventura,"  etc., 
indiscriminately  for  persons  of  both  sexes,  the 
English-speaking  race  affords  many  similar  cases. 
"  Preserved  Fish"  was  a  prominent  citizen  of  New 
York,  and  often  ran  for  office;  yet  I  defy  any  one 
to  find  any  indication  of  sex  in  his  name  any  more 
than  si'.cli  names  as  ''Desire,"  "Truth,"  "Hope," 
"Patience,"  "Thankful,"  by  which  New  Eng- 
landers  of  both  sexes  are  often  called.  The 
names  of  Brigham  Young,  Shirley  Brooks,  Sid- 
ney Morgan,  Currer  Bell,  Acton  Bell,  Boston  Cor- 
bet, Milton  Latham,  Leland  Stanford,  Leslie 
Coombs,  and  numerous  others  well  known  in  lit- 
erature or  politics,  might  be  given  equally  unin- 
dicative  of  sex. 

8.  I  have  dwelt  upon  the  case  in  50  New  York 
because  in  it  the  learned  Judge  has  given  us  his 
reasoning  at  length,  and  its  fallacy  can  be  shown. 
The  other  American  cases  may  be  more  briefly 
disposed  of.  In  the  State  vs.  Giles  (1  Wis.,  112), 
the  opinion  of  the  Court  on  the  point  is  clearly 
cjratis  dictum,  for  the  candidate  in  that  case  was 
held  to  be  eligible.  No  reasoning  or  authority  is 
given,  but  merely  the  opinion  of  the  Judges  on 
a  question  not  involved  in  the  case.  In  Off  vs. 
Smith  (14  Wis.,  497),  the  point  was  dismissed  in 
three  lines,  on  the  assumed  authority  of  State  vs. 
Giles,  which,  as  just  shown,  was  and  is  no  author- 
ity at  all.  The  opinion  in  38  Maine,  597,  does 
not  appear  to  touch  the  question;  there  was  no 
case     at    bar    and    no    argument;   the    Governor* 


17 

merely  consulted  the  Judges  us  to  his  powers,  an<l 
they  advised  hiin. 

The  opinion  of  Baldwin,  J.,  in  Siiunders  vs. 
Haynes  (13  Cal.,  145),  pixxMjeds  mainly  on  the 
authority  of  these  cases.  The  brief  reasoning-  of 
the  Judge  assumes,  as  of  course,  that  tlie  votes  for 
the  ineligible  candidate  were  given  by  a  mistake 
of  law  or  fact;  and  that,  though  they  cannot  be 
counted  in  favor  of  the  person  for  whom  they 
were  given,  they  can  be  counted  against  his  oppo- 
nent.     The  learned  Judge  in   that  case  having 

^been  of  counsel  for  the  respondent  in  Melony  vs. 
Whitman  (10  Cal.,  38),  and  urged  that  doctrine 
in  argument,  was  perhaps  influenced,  as  Judge,  by 
his  former  views  as  counsel.  He  does  not  explain 
how  a  vote  can  be  given  against  any  person 
except  by  giving  it  in  favor  of  some  one  else.  Nor 
does  he  give  any  intimation  whether  the  pre- 
sumption he  indulged  was  of  ignorance  of  the  law 
or  of  the  fact;  nor  what  reasoning  led  him  to 
such  presumption.  He  merely  says:  "  //'  a 
majority  of  those  voting,  hy  a  mistake  of  law  or 

fact,  happen  to  cast  their  votes  upon  an  ineligible 
candidate,  it  by  no  means  follows  that  the  next  to 
him  on  the  poll  should  receive  the  office;"  and  on 
that  suggestion  alone  he  disposes  of  the  point. 
But\  evidently  the  question  still  remains — Weie 
they  so  cast  hy  mistake  of  lain  or  fact?  How  is  that 
to  be  ascertained  ?  Is  eacii  individual  voter  to  be 
called  to  testify  how  he  voted,  and  whether,  when 
he  cast  his  ballot,  he  knew  of  the  law  declaring 
the  disqualitication  and   of  the   existence  of  the 


18 

disqualifying  fact?  Are  the  intrigues,  secret 
influences  and  caucus  deliberations  of  local  politi- 
cal managers  to  be  examined  into  in  Coui't,  with 
a  view  of  ascertaining  the  influences  that  proba- 
bly controlled  each  local  vote?  How.  if  the  dis- 
qualification be  declared  by  the  Constitution  of 
the  State  or  the  United  States  ?  Is  Ihe  voter 
to  be  permitted  to  allege  his  ignorance  of  the  pro- 
vision; or  is  evidence  of  the  general  character 
and  education  of  the  inhabitants  of  a  particular 
locality  to  be  admitted,  as  tending  to  guide  a 
Court  in  presuming  their  knowledge  or  ignorance 
of  the  fundamental  law  ?  How  many  elections 
held  in  States  or  districts  where  a  majority  of  the 
voters  is  composed  of  the  lately  enfranchised  col- 
ored population  could  resist  such  a  test? 

The  decision  in  Saunders  vs.  Haynes  throws  no 
light  on  any  of  these  pertinent  inquiries.  In  fact, 
an  examination  of  that  case  .will  show  that  Haynes' 
claim  to  the  office  was  contested  and  adjudged  in- 
valid by, reason  of  the  misconduct  of  the  officers 
conducting  the  election.  Such  misconduct  was 
alleged  and  shown.  The  effect  of  the  votes  cast 
for  Turner,  the  ineligible  candidate,  was  consid- 
ered in  discussing  a  demurrer  to  Haynes' s  an- 
swer, which  set  up  that  disqualification  as  a  bar 
to  the  action.  The  Court  decided  the  demurrer  well 
taken;  but  that  was  a  result  which  necessarily 
flowed  from  the  fact  that  any  citizen  was  author- 
ized to  contest  the  election,  and  that  the  canvass- 
ing officers  had  no  jurisdiction  to  decide  on  the 
qualification   of  candidates,   but  were   merely    to 


19 

return  the  votes  actually  cast.  Hence,  the  opin- 
ion in  that  case  is  not  authority,  because  the  point 
was  not  necessarily  involved. 

The  other  California  cases  are  Melony  vs.  Whit- 
man, supra,  where  Field,  C.  J.,  expresses  his  views 
on  it  obiter  in  a  dissenting  o[)ini()n,  and  Crawford 
vs.  Dunbar,  recently  decided,  ])ut  now  under 
reconsideration  by  the  same  Court. 

The  English  cases  quoted  in  support  of  the  doc- 
trine do  not  sustain  it.  A  leading  one  is  Reg.  vs. 
Mayor  of  Tewksbury  (3  Q.  B.,  620).  In  it  the 
Judges  conced(^d  that  the  voter  is  hound  to  know  that 
the  candidate  held  the  office  which  disqualified  him;  but 
as  the  disqualification  was  matter,  not  of  statute 
law,  but  of  recent  judicial  decision  on  a  //oint  pre- 
viously obscure,  they  questioned  whether  th  a 
decision  had  come  to  the  knowledge  of  the  voters, 
and  thought  that  notice  of  it  should  have  been 
brought  home  to  them.  (See  opinion  of  Blackburn, 
J.,  3  Q.  B..  635  &  secj.,  and  of  Lush,  J.,  on  page 
638.)  I  need  scarce  advert  to  the  wide  differ- 
ence between  a  presumption  of  ignorance  of  a  dis- 
qualification resting  on  a  judicial  decision  a  month 
or  two  old,  and  of  one  established  by  the  Consti- 
tution at  the  foundation  of  our  Government. 

The  idea  that  votes  cast  for  a  disqualified  per 
son,  though  inefficient  to  elect  him,  are  yet  good 
as  against  his  opponent,  appears  at  first  sight 
plausible;  but  it  will  not  bear  examination. 
It  assumes  two  opposing  candidates  for  tlie 
place,  between  whom  the  choice  of  the  voters  is 


20 

limited,  ami  that  every  vote  cast  for  either  of  them 
affirms,  in  judgment  of  law,  two  distinct  things, 
viz.  First,  I  am  in  favor  of  electing  Mr.  A  to  this 
office;  second,  I  am  opposed  to  electing  Mr.  B  to 
it.  It  is  only  by  so  construing  the  ballot  that  it 
can  be  deemed  invalid  as  to  the  person  in  whose 
favor  it  is  cast;  yet  good  as  against  the  other  can- 
didate. But  I  submit  confidently  that  this  is  an 
erroneous  construction.  It  is  true  that  in  common 
parlance  we  speak  of  voting  against  a  man,  but 
the  expression  is  merely  a  popular,  not  a  legal  one. 
The  law  does  not  invite  or  permit  voting  against 
any  candidate.  It  does  not  know  such  an  act  as 
voting  against  any  man.*  It  gives  each  voter  the 
right  to  vote  in  favor  of  whomsoever  he  prefers; 
but,  save  by  voting  in  favor  of  one  who  is  quali- 
lied,  there  is  no  legal  way  in  which  he  can  vote 
against  another.  Suppose  him,  if  you  please,  so 
disgusted  with  all  the  nominations  made,  as  to  be 
unwilling  to  support  any  of  them.  Has  he  a  right 
to  inscribe  on  his  ballot  a  vote  in  opposition  to  all 
or  any  one  of  them,  and  could  his  vote,  if  he  did 
so,  be  comited  for  any  purpose?  Surelj^not;  for 
the  question  is  not  taken — Those  in  fav^or  of  Mr. 
A  will  vote  "aye";  those  oppbsed  to  him,  "no." 
If  a  l)allot  in  favor  of  one  candidate  is  to  be 
deemed  a  vote  against  another,  and  held  efficient 
in  tlie  latter  aspect,  what  becomes  of  the  law  that 
a  plurality  of  votes  is  sufficient  to  elect?  A  has 
500   votes;    B,  475;  and  C,  475.     Five  hundred 


*  See  opinion  of  C.  J.  Denman  in  Gosling  vs.  Veley,  cited  ante  in 
note. 


21 

in  favor  of  A,  and  950  against  him!  Yet  he  is 
elected,  although  the  majority  against  him  (popu- 
larly speaking)  is  nearly  two  to  one.  If  the  votes 
of  the  950  supporters  of  B  and  C  could  be  counted 
as  votes  against  A,  he  would  be  defeated. 

In  many  instan(3es  several  persons  are  voted  for 
on  the  same  ticket  for  the  same  ofHce  (as  mem- 
bers of  the  Legislature,  Presidential  Electors,  etc.), 
so  that  no  one  man  can,  even  in  popular  language, 
be  said  to  be  running  against  a  particular  opponent. 
How  count  these  supposed  negative  votes,  or  votes 
against  an  opponent  in  such  a'  case?  Suppose  the 
case  of  Presidential  Electors,  six  to  be  chosen  and 
100,000  the  total  number  of  votes  cast.  Mr.  A,  a 
federal  officer,  disqualified  by  the  Constitution  of 
the  United  States,  is  so  general  a  favorite  as  to  be 
put  on  all  the  tickets  and  receive  a  unanimous  vote, 
suppose  the  votes  as  to  the  other  five  to  be 
divided  substantially  in  tlie  proportion  of  fifty-one 
and  forty-nine  per  cent.  When  counted,  the  bal- 
lots turn  out  as  follows: 

Mr.  A  (a  Federal  officer).. has  100,000  votes. 

Mr.  B ■. ..  '  51,000  " 

Mr.  C '=  51,000  " 

Mr.  D "  51,000  " 

Mr.  E "  51,000-  " 

Mr.  F     ... "  50,900  '• 

Mr.  G "  40,100  " 

Mr.  H "  49,000  " 

Mr.  I "  49,000  " 

Mr.  K "  49,000  " 

Mr.  L "  49,000  " 

Who  are   tlu>  persons    chosen?      Against  ichom 


22 


are  the  100,000  votes  cast  for  Mr.  A  to  be 
counted  ?  Counted  against  any  one  of  the  other 
ten,  they  will  defeat  him,  yet  he  had  no  oppo- 
nent, and  so,  in  common  parlance,  in  voting  for 
him  you  did  not  vote  against  any  one.  Further 
illustration  may  be  had  by  varying  the  case,  and 
supposing  the  Federal  officer,  though  on  all  the 
tickets,  to  be  scratched  by  individuals  to  the  ex- 
tent of  three,  ten,  thirty,  forty  thousand  votes. 
Whatever  way  it  is  put  it  serves  to  render  more 
plain  the  falsity  of  the  doctrine  that  under  our 
system  there  is  any  such  thing  (legally  speaking) 
as  voting  against  any  one. 

9.  Stress  is  sometimes  laid  on  the  idea  that  by 
holding  votes  for  an  ineligible  candidate  to  be 
void,  you  defeat  the  popular  will;  and  Judge 
Baldwin,  in  Saunders  vs.  Haynes,  speaks  of  the 
hardship  of  a  man's  being  elected  by  a  minority 
of  the  voters.  But  this  is  to  lose  sight  of  the  rule 
that  the  popular  will  to  he  legally  efficient  must 
he  expressed  hy  legal  means,  and  that  the  consti- 
tution and  the  laAVs  allow  a  minority  of  all  the 
voters  to  elect,  by  declaring  a  mere  plurality  to  be 
sufficient  for  the  purpose. 

Again,  if  it  be  true,  that  the  casting  of  a  ma- 
jority of  the  votes  for  a  disqualified  person  leaves 
a  Court  at  liberty  to  declare  the  next  on  the  poll 
elected,  or  to  determine  that  there  was  no  choice, 
it  would  seem  that  the  Court  should  have  the 
power  to  order  a  new  election,  for  that  would  be 
the  natural  result  of  the  latter  decision.    The  fact 


23 

that  no  SLicli  power  is  given  to   courts   anywhere, 
is.  therefore,  some  argument  against  the  position. 

On  the  whole,  I  am  convinced  that  the  safer  and 
more  reasonable  rule  in  such  cases  is  that  laid 
down  in  Hatcheson  vs.  Tilden  and  Borcly  {4  H. 
&  McH  279);  and  in  Gulick  vs.  New  (14  Indiana, 
93).  In  the  latter  case,  the  Court  intimated  that 
a  distinction  might  exist  between  constitutional 
disqualifications  and  others,  but  refrained  from 
any  opinion  on  the  point;  thus  carefully  limiting 
its  decision  to  the  case  actually  before  it. 

The  general  current  of  the  English  decisions  is 
the  same  way.  See  the  cases  collected  in  Bright- 
ley's  contested  election  cases  page  150.  It  is  to  be 
observed  hero  that  disqualification  for  office  is  so 
exceptional  under  our  (jovernment  that  questions 
arising  on  it  have  rarely  arisen  and  been  but 
loosely  considered.  None  of  the  adjudged  cases, 
that  I  am  aware  of,  have  involved  any  office  of 
great  public  importance,  or  elicited  a  thorough  dis- 
cussion on  principles  of  political  law. 

Looked  at  from  that  point  of  view,  it  will  be 
found  that  there  is  an  insuperable  objection  to 
entertaining  any  i)resumption  or  permitting  any 
evidence,  as  to  knowledge,  ignorance  or  intent  on 
the  part  of  the  voter,  for  the  purpose  of  ascertain- 
ing the  result  of  the  election.  The  proposal  to  do 
so  loses  sight  of  the  distinction  between  civil  and 
political  acts.  As  to  the  former  it  is  true  that  an 
act  done  in  ignorance  of  material  facts,  or  with  in- 
tent to  do  another  and   dilTerent  one   is  voidable 


24 

and  may  be  con-ectecl  to  conform  to  the  intent  of 
the  parties.  If,  intending  to  execute  a  deed  in 
favor  of  A,  I  sign  one  in  favor  of  B,  a  Court  can 
reform  the  instrument  and  make  it  what  it  was 
intended  to  be.  If  I  am  induced  to  make  a  deed 
or  enter  into  a  contract,  by  misrepresentations  or 
concealment  of  material  facts,  the  same  power  can 
set  aside  the  instrument  and  restore  me  to  my 
former  right.  If  my  agent  is  induced  by  a  bribe 
or  other  personal  consideration  to  convey  or  lease 
my  property,  I  can  repudiate  the  act  and  have  it 
annulled.  These  are  cases  of  civil  acts.  But  with 
respect  to  political  acts  the  rule  is  widely  different. 
If  I  am  induced  to  vote  for  a  particular  candidate, 
by  misrepresentations,  no  matter  how  false,  as  to 
his  fitness  for  the  office  and  the  unfitness  of  his 
opponent,  or  as  to  the  political  opinions  of  either, 
the  act  is  irrevocable,  and  the  election  valid.  An 
act  of  the  legislature  procured  by  direct  bribery 
of  the  members  voting  for  it,  is  not  the  less  a  valid 
law,  and  if  it  involves  a  contract,  it  is  irrepealable 
(Fletcher  vs.  Peck,  6  Cranch,  87).  A  pardon  pro- 
cured from  the  Executive  by  misrepresentation  or 
bribery  is  nevertheless  unimpeachable.  These  are 
instances  of  political  acts. 

If  ignorance,  or  presumed  ignorance,  of  a  partic- 
ular fact  can  invalidate  a  vote  or  change  its  charac- 
ter, it  is  difficult  to  see  why  ignorance  or  misin- 
formation on  another  fact,  equally  material  in  the 
estimation  of  the  voter,  should  not  have  the  same 
effect.'  If  rightly  applied  where  the  candidate  was 
an  office  holder,  and  the  voter  unaware  of  the  fact. 


25 

why  not  in  other  cases  ?  How  if  he  was  nominated 
and  supported  on  the  supposition  that  he  was  a 
member  of  a  total  abstinence  society  or  of  some 
christian  church,  and  represented  to  be  such  by  his 
advocates,  yet  it  afterwards  turned  out  that  he  was 
not?  And,  as  the  act  of  voting  usually  consists 
in  a  choice  between  opposing  candidates,  what 
effect  on  the  validity  of  the  vote  is  to  be  attributed 
to  misrepresentations  of  the  character  or  opinions 
of  the  opposing  candidate  ?  It  was  charged  in 
the  Senate  of  the  United  States,  and  admitted, 
that  in  1844  Polk  and  Dallas  were  supported  in 
Pennsylvania  distinctly  as  Protectionists.  "  Polk 
and  Dallas  and  the  tariff  of  1842''  were,  it  was 
agreed,  inscribed  on  every  Polk  and  Dallas  elec- 
tion banner  in  that  State.  The  majority  of  votes 
in  Pennsylvania  which  determined  that  Presiden- 
tial election  was,  if  this  be  true,  won  by  direct 
misrepresentations  as  to  the  political  opinions  of 
the  opposing  candidates.  Was  any  suggestion 
heard  that  the  election  was  therefore  invalid  ? 
It  has  been  alleged  that  the  distribution  of 
Credit  Mobilier  Stock  among  members  of  con- 
gress secured  the  passage  of  certain  Pacific  R.  R. 
legislation.  If  so,  the  persons  accepting  such 
bribes  could  be  punished  criminally,  but  the  legis- 
lation is  not  the  less  valid. 

The  reason  of  this  distinction  between  civil  and 
political  acts  is  to  be  found  in  the  very  necessities 
of  Government,  which  could  not  be  carried  on  for 
a  day  if  the  validity  of  the  latter  class  of  acts  was 
allowed  to  depend  on  any  such  conditions  as  may 


26 

affect  the  former.  Hence  the  law  presumes  abso- 
lutely, on  the  part  of  ever}^  one  charged  with  the 
performance  of  any  political  duty,  all  the  knowl- 
edge and  mental  capacity  necessary  for  its  complete 
and  intelligent  discharge,  and  such  presumption 
cannot  be  rebutted.  It  is  even  most  necessary  in 
communities  of  the  least  instruction  and  lowest 
intelligence,  for  there  controversies  based  on  mis- 
•representations  to,  imposition  on,  or  misunder- 
standing by  the  voters,  would  be  most  frequent 
and  least  capable  of  satisfactory  solution. 

10.  But  whatever  may  be  the  rule  as  to  minor 
officers,  or  in  the  case  of  disqualifications  created  by 
statute,  it  is  certain  that  it  can  have  no  application 
to  a  disqualification  created  by  the  Constitution  of 
the  Uijited  States  as  to  any  of  the  high  officers  of 
Government.  The  President  of  the  United  States 
is  required  to  be  a  native  born  citizen.  Suppose 
some  of  the  Presidential  Electors  cast  their  ballots 
for  Carl  Schurz  or  some  other  eminent  adopted 
citizen,  what  becomes  of  such  votes?  Can  they  be 
counted  ?  Evidently  not.  So  it  requires  the 
Electors,  in  voting  for  President  and  Vice  Presi- 
dent, to  select  at  least  one  who  is  not  a  citizen 
of  the  same  State  with  themselves.  Suppose  the 
New  York  Electors,  in  violation  of  this  provision, 
should  vote,  "For  President,  Samuel  J.  Tilden; 
for  Vice  President,  Lucius  Robinson  " — is  the 
country  to  be  vexed,  on  this  doctrine  of  presump- 
tive ignorance,  with  an  absurd  discussion  as  to 
whether  they  know  that  Messrs.  Tilden  and  Robin- 
son were  both  citizens  of  Xew  York,  or  were  aware 


27 

of  the  constitutional  provision  on  the  subject  ? 
At  the  last  presidential  election  votes  were  cast 
in  the  Electoral  College  for  Horace  Greeley,  who 
was  dead.  No  inc^uiry  was  made  as  to  the  knowl- 
edge or  intention  of  the  Electors;  the  votes  were 
simply  thrown  out,  and  not  counted  in  any  way. 

Presidential  Electors  are  chosGn  a  very  brief 
time  before  they  are  to  exercise  the  single  duty 
of  their  office  by  voting  for  President  and  Vice 
President,  There  is  no  time  'to  hold  a  second 
election  if  the  first  one  fails,  nor  any  even  to 
submit  to  a  court  the  question  of  what  presump- 
tion shall  be  entertained  as  to  how  many  of  the 
voters  whose  ballots  were  cast  for  a  disqualified 
person  knew  the  disqualifying  fact,  and  therefore 
intended  to  throw  away  their  votes.  There  is 
therefore  no  room  for  presumption  upon  the  sub- 
ject, and  the  conclusion  is  inevitable  that  votes 
cast  for  the  office  in  favor  of  a  person  disqualified 
by  the  Constitution  are  thrown  away,  and  that 
the  next  highest  candidate  who  is  eligible  is 
elected. 

Yours  respectfully, 

JOHN  T.   DOYLE. 

San  Francisco.  Dec.  1st.  187t). 


a9U91.'5 


28 

The  undersigned  concur  in  the  foregoing  opin- 
ion. 

San  Francisco,  December  2d,  1876. 

Delos  Lake,  Eugene  Oasserly, 

John  S.  Eager,  John  R.  Jarboe, 

Edmund  L.  Guold,  Harry  I.  Thornton, 

Philip  G.  &alpin,  Edward  J.  Pringle, 

Sydney  L.  Johnson,  John  Garber. 

I  think  the  foregoing  opinion  is  a  sound  expo- 
sition of  the  law  applicable  to  the  choice  of 
Electors. 

Henry  H.  Haight. 


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